Vicarious Liability

Vicarious liability is the doctrine that imposes liability on employers for the
wrong doings of their employees.
The claimant must establish that;
1. A tort was committed.
2. A relationship of employee-employer.
3. Tort was committed within the course of employment.

Independent contractor:
Ready Mix Concrete v Ministry of pensions and national insurance (1968)
The driver contracted with the company for the delivery of concrete. He was
declared “independent contractor” and the wages and expenses were set out.
The vehicle was to be of the driver which would be painted with company's
colours, these were the requirements of the company. The vehicle would be
driven by the driver himself but under company's rules.
The Court held that the driver was an independent contractor and not an
employee of the company.
A person would be considered an employee if:
1. In return for the payment, they would provide work and skill for the
employer.
2. A person agrees, clearly yet not directly expressed, to be subject to the
employer's control.
3. The other terms of the contract are consistent with the existence of a
contract of service.

Hawley v Luminar
A nurse was borrowed by a hospital from NHS. It was held that the hospital will
be liable for her vicariously, as she had become a part for the time a part of the
integral working of the hospital.
Relationship ‘akin’ (similar character) to employment:

Various claimants v The Catholic Child Welfare Society (2012)

This case was concerned with the abusive behaviour by the teachers at the
school for boys, both the teachers were brother. The institute didn’t own the
school but their members were teacher in the school.
Supreme Court held that the institute was vicariously liable and it was fair and
just and reasonable for the defendants to share liability.

Justification Of Vicarious Liability by Lord Phillips:

1. The employer is likely to be in a position to compensate the claimant.
2. The action was committed as a result of the activity untaken by the
employee on behalf of the employer or as part of the business of the
employer.
3. The employer by employing the employee has taken the risk of harm
occurring and so, as they either gain a benefit from that risk or because of their
role in creating it, they should bear responsibility should the risk materialize.
4. The employee will have been under the control of their employers.

But these justifications are just that, a means to justify the somewhat unfair
result of this area of law. The biggest reason for claiming vicarious liability will
remain that the person who has the funds to pay, should pay.

Requirements for actionable Claim for Vicarious Liability:

1. There is an employer-employee relationship, or one akin to employment,
between the defendant and the tortfeasor.
2. The tortfeasor committed the harmful act while acting in the course of their
employment.
Cox v Ministry of justice (2016)

The claimant was working as a catering manager at a prison. The prisoner

while working Tripped over the claimant and injured her.
The Supreme Court held that the defendant was vicariously liable. It took the
approach of Christian brothers from the case of CCWS which extended the
scope of vicarious liability beyond an employer's responsibility for the acts of
its employees.
The prisoner was working under the direction of prison staff.
McBride criticised this decision saying ‘we have no idea where this area of law
is going, other than that it is nowhere good’
And said that if saving the money is intention then hiring a cheaper
independent contractor could be a good option and eligible too.

Armes v Nottinghamshire County Council (2017)

The appellant was in the care of the local authority. The local authority handed
her into the care of her new foster parents. However, she was abused
physically and emotionally by Mrs A, where Mr B abused her sexually.
The Supreme Court held in the favour of Claimant. The court said that the local
authority was vicariously liable for the foster parents’ torts.
Lord Hughes argued that they would also apply to cases where local authority
places children with blood-relatives.
However, Blood relatives will usually not be paid or trained by the local
authority. They may also have a right to see the child and may be solely
motivated by personal reasons. Therefore, it may be more difficult to describe
them as an integral part of a local authorities’ business.
Barclays Bank Plc v Various Claimants (2020)
A doctor was hired to conduct medical examinations for Barclays Bank Plc. A
group of 126 women, claimants, made allegations of sexual assault against the
doctor. The claimants were made to undertake the process alone. Barclays
tried to prove that the doctor and the bank had no relationship of employment
and thus the doctor was self-employed.
The SC held that the bank was not Vicariously liable as the SC reversed the CoA
earlier in 2018 and ruled that the doctor was not an employee but was an
independent contractor who had no relationship akin to employment. This
decided that there is an independent contractor defence in vicarious liability
which can be potent in deciding employment footing.
Lady Hale said that it was clear that although Dr Bates “was a part-time
employee of the health service, he was not at any time an employee of the
Bank. Nor, viewed objectively, was he anything close to an employee” – citing
the example of other independent contractors, such as window cleaners or
auditors.
Admitting that the situation might be slightly different where the contractors
are paid a retainer but the case here was different so Dr Bates was free to
refuse examinations and even “no doubt carried his own medical liability
insurance". This puts a helpful precedent to healthcare insurers going ahead
who can now mention to the fact that those independent contractors should
generally have their own cover in place. Equally, in which insurers are offering
cover to independent contractors, they'll consider of the fact that they're in all
likelihood to be covering the charges of any claims, rather than the insurers of
the businesses who're employing them on a consultancy basis.
If the CoA decision had been supported there was a risk there might have been
an increase in cases in respect of historic wounds, prior to that claimant had
been unable to identify sufficiently wealthy defendant in order to them
vicariously liable for the actions of independent contractor. However, it is less
likely to be the case now, impact from the perspective of healthcare
organisations and their insurers.
Barclays decision confirms the facts of the case could quash any express
agreement between the parties if on those facts the relationship between
those parties made it fair, just and reasonable to impose vicarious liability,
Impact from the perspective of employer's liability insurers.

Borrowed Employees

Viasystems Ltd v Thermal Transfer Ltd (2006)

The claimant hired contractors for the installation of air condition on their
property. There was damage done to the claimant's property caused by S who
was employed by subcontractor(D1), but was under the supervision of both
D1's foreman and Subcontractor (D2) fitter.
The CoA held both D1 and D2 vicariously liable, hence compensation would be
equally divided as the liability was found on no fault basis.
The principle developed was that, both the employers can be held liable if it
can be shown that both had a certain amount of control over the performance
of the employee.

Salmond Test
The fundamental proposition was: ‘A master is not responsible for a wrongful
act done by his servant unless it is done in the course of his employment’.
So basically, an employer would be liable for an employee when the employee
would do authorized act in an unauthorized manner.

General Approach
Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942)
A driver of a petrol lorry was transferring petrol from the lorry in a tank, in C's
garage. There the driver lit a cigarette and due to it an explosion was caused.
In this case the driver's employer was liable, whatever the driver did was done
within the course of his employment.
Lord Wright said the act of the driver was negligent method of conducting his
work.

Lister v Hesley Hall (2002)

The defendant employed a warden to run the boarding house. The claimants
sued the defendant for vicarious liability as for sexual abuse done by warden.
The COA held that defendant was not vicariously liable as warden's act could
not be regarded within the course of employment as an unauthorised mode of
carrying out his authorised duties.
But the HOL held that the defendant is vicariously liable as the warden was
acting within the course of employment when committed sexual abuse.
Lord Steyn criticised the Salmond test as it does not deal ideally with the cases
of intentional wrongdoing. The tests use was dependant on focusing on the
right act of the employee.
Warden's torts were so closely connected to the employment that it was fair
and just to hold the defendant vicariously liable.
In this case ‘Close Connection Test’ was introduced which said that the courts
asks whether a close link exists between the wrongful conduct of the
employees and the business of the employer or the nature of the employment.
Lord Millet drew a line between mere opportunity for abuse and inherent risk
created by employment.
Lord Millet had a view that the warden's duties gave him an opportunity to be
in the boarding house to abuse the boys, but the school porter or groundsman
would have had the same opportunity. More than mere opportunity, Warden
abused his position which was entrusted to him to take care of the boys.
In short there is inherent risk of abuse, where the person in authority takes
care of vulnerable residents in boarding schools, prisons etc.
Close Connection test allows intentional torts to be entrapped in the scope of
vicarious liability.
Frolics & Detour (Two categories used for personnel benefit by employees)

Beard v London General Omnibus (1900)

The conductor drove the bus off the route and got on around streets in order
to save time. By doing so he injured the plaintiff, who took action against the
bus company.
The plaintiff failed to provide evidence of authorisation to drive bus for the
conductor. Hence, failed to establish that they had any responsibility in
negligence for conductor's act. The action failed.

Driving to & from the place of work

Smith v Stages (1989)
The claimant and the D1 the driver who drove on the way back, were paid by
their employer (D2) for work at power station. Claimant was a passenger
where the D1 was driving, his negligent driving led them to an accident, Injury
occurred.
The claimant sued the Employer (D2) for vicarious liability.
The employer was held liable as D1 was acting in the course of his
employment. However, Lord Goff said when preparing for a long journey for
work every day and an accident occurs at the time of journey when going for
work the employer will not be liable as the employee would not be in the
course of employment when travelling to work.

Expressly Prohibited Acts

Limpus v London General Omnibus Co (1862)
The driver intentionally came Infront of another omnibus and caused it to
overturn. The bus company had forbidden its drivers to obstruct other buses.
It was held that the driver was acting in the course of his employment and the
company was liable to the one who was injured in the accident.

Rose v Plenty (1976)

The roundsman delivers milk and he brought a 13-year-old boy (claimant) onto
his van for help. The employer forbade him to giving of lifts. Because of the
roundsman negligent driving the claimant got injured.
The Employer was vicariously liable to the claimant.
Lord Denning MR said that if the act's purpose was for the employers benefit
not the employee, the employer can be vicariously liable. The prohibited act
was thus within the course of employment.

Deliberate or Criminal Acts

Lloyd v Grace Smith & Co (1912)
L agreed to the advice of managing clerk, who was an employee of a solicitor's
firm, and agreed to sell property. She signed two documents by which the
property was transferred to the clerk who misappropriated the proceeds.
The decision held was that the employers were held liable as it was no defence
that the employee was acting in the course of employment to benefit himself.
The HOL held that allowing the clerk to deal with the clients was enough
authority to conduct certain types of business.

Warren v Henlys Ltd (1948)

The customer was abused by the attendant at the petrol station because he
didn't pay but he paid and left. The customer came back with police and the
police officer listened to both of them and indicated that it was not a matter
that should involve police. At the point the police officer was about to leave
when the customer told the attendant that he would complain to his employer
upon hearing this the attendant punched on the face of customer. The
customer sued the employer.
It was held in the favour of the employer and said that the assault was done
for personnel revenge and was outside of the course of employment as the
matter was resolved when the customer left and when he returned it was for
personal reasons.

Close Connection
Dubai Aluminium Co Ltd v Salaam (2003)
A senior partner of a firm outlined a consultancy agreement and other
essentially required documentation for a client's fraudulent enterprise. The
company was made to pay an amount of USD 50 million over time under this
fraudulent consultancy agreement. The firm was sued by the company for
vicarious liability for their senior partner's dishonest assistance to a client.
HOL said that the act of an employee occurs during the “ordinary course of
employment” is to be given an “extended scope” as the legal policy of vicarious
liability recognises the chances endured by business enterprises to third
parties, and that when “those risks ripen into loss, it is just that the business
should be responsible for compensating the person who has been wronged.”
The partner was acting as an employee of the firm when he aided in drafting
the consultancy agreement and other documentation. However, the firm was
held vicariously liable for the damages taken by the partner's dishonest
assistance.

Mattis v Pollock (2003)

A doorman/bouncer was hired as an employee, after a noisy argument in
public he went home and returned with a knife, he seriously assaulted the
customer.
It was held that the night club was vicariously liable for the employee's act as
there was enough connection as to time, location, and the nature of his acts to
create liability. Shortly the injury inflicted upon the customer fell within the
broad scope of his employment hence the employer was held liable.
Mohamud v WM Morrison's Supermarket PLC (2016)
The claimant was rudely refused to give service by the tortfeasor when he
entered the supermarket petrol station. The employee subjected the claimant
to threatening and racist abuse and followed him to his car. The employee
opened the car's door and physically assaulted him with more threats.
The HOL/Supreme Court said that they do not wish to diverge from the
precedent but the court felt it was better to simplify the test as it would be
more desirable. The requirement for it were, the consideration of the
employee's functions and whether there is an adequate connection between
the wrongful conduct and the employer. It was held that the employee showed
very unacceptable behaviour on his position, however, there was a connection
with the business by which the tortfeasor was employed. Hence, the
employers were held liable. As long as an employee is within their field of
activities, they will be considered within the course of employment.
Moreover, it was established that it does not matter the act of the tortfeasor
was of a crime, a defendant employer can be found vicariously liable for the
act.
In my opinion the principle of Mohamud supports the idea of social justice but
defies the idea of corrective justice.

WM Morrison Supermarkets Plc v Various Claimants (2020)

Morrison appealed against CoA's decision that it was vicariously liable in
damages done to thousands of employees which included the present and the
former one's. The personal record about the respondent employees was
published on the internet by another of Morrison's employees, Mr Skelton.
The employee, Mr Skelton, a senior auditor resented Morrison's following
previous disciplinary proceedings against him. Mr Skelton was given access to
the payroll data of the Morrison's workforce and got a copy of it and uploaded
it to the data belonging to the majority of employees to a publicly accessible
file-sharing website with the links to the statistics posted on different websites
(disclosure). Mr Skelton was convicted of numerous offences and sentenced to
eight years imprisonment.

The Employee brought claims for the compensation from Morrisons on the
basis the Mr Skelton was an employee of Morrison's and they were vicariously
liable, whether, the breach of statutory duty under s.4(4) of the Data
Protection Act 1998, or for the ill use of private data.
The Supreme Court followed the principle of Dubai Aluminium Co Ltd v
Salaam 2002, The wrongful conduct must be so closely connected with the
acts that the employee was authorised to do by the employer, the employee
must have been regarded as acting in the course of employment.
It was held there was no "close connection” and Mr Skelton was not
authorised by the Morrison's and Mr Skelton was acting on his interests rather
than Morrisons.
Lord Reed stated that the “the imposition of a statutory liability upon a data
controller is not inconsistent with the imposition of a common law vicarious
liability upon his employer, either for the breaches of duties imposed by the
DPA, or for breaches of duties arising under the common law or in equity”.
As DPA is silent on the matter of data controller's employer, SC held there
could be uncertainty between the statutory and common law rules.
It is important because the employers will be favourable to the decision and
about the fact that it would not be enough to apply vicarious liability by just
taking wrong advantage of the given position.
At the time, the ICO found no enforcement action was required with respect to
Morrison's accordance to the DPA, this case sums up that the claimants may
still pursue damages for distress.